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University of North Carolina School of Law
Corrado, Michael L.

Torts Outline – Prof. Michael Corrado – Fall 2013

Elements of Prima Facie Case for General Negligence

Duty – “avoid foreseeable AND unreasonable risk”

Duty of reasonable care – court answers question does defendant have duty of care to the plaintiff?

3 exceptions:

Nonfeasance – no general duty to go to the aid of somebody / warn them of harm (when D has failed to aid P through beneficial intervention)

Exception #1: you have a special relationship with them

Examples of special relationships

Relationship of dependence (parent/child, doctor/patient, prison/prisoner, employee/employer)

Contractual Relationships

Initiation of rescue – MAY be created when you attempt to rescue somebody

Causing situation of peril (hitting somebody and leaving them there without

§ South – not obligated to help if you are an innocent bystander (Good Samaritan Rule), but are obligated if your actions somehow caused the initial injury (through tortious or innocent behavior)


Tarasoff – duty of doctor (special relationship) to warn if patient makes specific threat towards another and they know/should know patient might cause harm to another

Prima Facie case for Nonfeasance:

D had a special relationship (either to P or injurer)

D had a corresponding duty of care

D breached that duty

D’s breach caused the injury

P suffered the injury

Theobald (no special relationship = no duty)– observers/”friends” who watched boy kill himself playing Russian Roulette did not have a special relationship with him, thus were under no duty to intervene

Misfeasance – when D is responsible for making P’s situation worse

3 Traditional Rules (APPLY ONLY TO LAND/REALTY):

Duty of care to invitees (permission and mutual benefit); no duty of care to licensees (permission and guest only benefit) and trespassers (no permission and guest only benefit)

Duty of care to invitees and licensees; no such duty to trespassers (predominant rule)

Duty of care to invitees; duty to warn of hidden dangers to licensees; no duty of care or to warn to trespassers

Prima Facie Case for Misfeasance (Non-Rowland Jurisdictions):

P had a certain status on D’s property

D had a duty corresponding to that status

D breached that duty

D’s breach caused injury

P suffered the injury

Rowland jurisdictions – general duty of care to everybody (even tressassor) assuming you know they are on your property (which you often don’t) à effect was to bring premises liability back to general duty of care by doing away with rigid Inv./Lic./Tress. classifications



Modified Version


Rowland (CA)


Ordinary care + duty to warn of hidden dangers

Ordinary care + duty to warn of hidden dangers

Ordinary care + duty to warn of hidden dangers



Not to wilfully and wantonly injure

Duty to warn of hidden dangers

Ordinary care + duty to warn of hidden dangers



Not to wilfully and wantonly injure

Not to wilfully and wantonly injure

Not to wilfully and wantonly injure



This is where it shifts to the jury to decide

Don’t take breach for granted – cannot just say defendant was negligent, must explain that defendant had duty and explain how they breached it before you move on to causation and harm

3 Questions

Objective or subjective?

General rule: “reasonable person rule” unless exceptions apply, objective standard applies and is the same for everyone

Exceptions: 2 main categories are children and those with disabilities

Children are held to a more subjective standard, but is still considered objective (reasonable child standard, but factor in age, maturity, experience, ability, etc.)

Exception for activities to be considered to be “adult activities” in which case children are held to adult objective standard (adult activity is a bit ambiguous – either (1) an activity that children don’t usually engage in or (2) a dangerous activity)

Same test used whether child is plaintiff (being accused of cont. negligence) or defendant

Tender years Doctrine (some jurisdictions)

Under 7 à too young to be negligent

7-14 à trier of fact must consider the age, capacity, intelligence, and experience of the child in light of the rebuttable presumption that a child of this age is incapable of negligence

Above 14/engaging in adult activity à assume to be capable of negligence

Disabled persons

Physically disabled – held to the standard of reasonable person with similar disability

Mentally disabled (legally insane)

Is a defense if it is sudden onset (had no reasonable foresight)

Common Carriers (Mass Transportation)

Standard is generally higher for common carriers

P must actually have been one the common carrier when injury occurred for higher standard to apply


Reasonable person standard

Jury instructions

Carroll Towing à balancing test (B – “Hand Formula”

P = probability of injury

L = seriousness of injury

B = cost of preventing injury (includes cost of adopting alternative methods)

If Bà negligence to not take B

If B>PL à not negligence to not take B

Custom in the trade, industry, or profession

DOES apply to specialized professions (Doctors, therapists, lawyers, etc.) LOOK AT MEDICAL MALPRACTICE SECTION

DOES NOT apply to trade or industry (although it may be used as an argument either as a sword or a shield)

TJ Hooper case – professional custom can be used as evidence of negligence, but it does not provide an absolute rule

Violation of safety statute (negligence per se) à if found, establishes duty and breach

Prima Facie Case for Negligence Per Se:

D violated statute

P is a member of the class statute was intended to protect

D’s violation caused P’s injury

P’s injury was the sort of injury statute was intended to protect against

If get this type of question, must still discuss th

each held liable for their share of the DES market at the time it was used by P’s mother

Market Share Liability – plaintiff was injured by one of a number of many defendants, but can’t prove which one

Different from Summers, which depends upon a very small number of Ds

Only applicable to the Sindell DES case

General Rule: provided that the plaintiff can bring producers with a substantial share of the market into court, and provided that all produced the product with exactly the same formula, the plaintiff can collect from them in proportion to their market share


Loss of Chance – D’s negligence proportionately lower P’s chance of survival by some percentage

Beswick – quoting USSC cite in opinion – loss of chance cases, by their very nature elude the degree of certainty one would prefer and upon which the law normally insists before a person may be held liable

3 different rules:

If loss of chance below 50%, P cannot recover because they can never prove more likely than not that but-for D’s negligence, injury would not have occurred (Strict Prep. Of Evidence BoP)

If in this jurisdiction, summary judgment for D would be appropriate, because P cannot recover (barred by impossible burden of proof)

P can recover only for the loss of chance if they prove D substantially increased risk of that injury (Prep. of Evid. BoP w/ redefined injury)

In this case injury is defined as the loss of chance itself, making it much easier for P to prove causation

? for jury = did negligence cause loss of chance

Burden of proof is simply lowered for P – can recover even if they cannot prove that more likely than not D’s negligence caused their injury (Lower BoP than Prep. Of Evidence)

? for jury = did negligence cause death/loss of body part itself (with lowered standard of proof)

Proximate causation

Which of the actual causes are going to be held to be responsible for the injury?


Which rule is being used in the jurisdiction and is the rule satisfied here?


(Used in most jurisdictions) Question: could D foresee injury to P

Balance between likelihood of potential injury and seriousness of potential injury

Wagon Mound I – oil spill leads to fire through unforeseen circumstances – leads court to adopt foreseeability rule

Foreseeability outcome will differ from directness outcome when D’s negligence creates foreseeable risk to somebody, but not a foreseeable risk to the particular plaintiff that ends up being injured (in this scenario there would be no prox. Cause under foreseeability theory even though there would be under direct theory)