Negligence => Tort AND Neglig. => failure to live up to a standard of care (element)
(1.) Duty (of reasonable care)
§ General (all-to-all)
§ Specific (duty to warn, protect, rescue)
§ Unreasonable conduct
§ Cause-in-fact (But-for)
§ Proximate / Foreseeability (Policy/fairness limit on liability)
– ∆ will not be liable unless he owed a “duty of care” to the π.
– Duty is “only an expression of the sum total of those considerations of policy which lead the law to say that the π is entitled to protection.” (Prosser)
– General : “duty of all to all” – duty to act reasonable to all under the circumstances.
o Special relationship – duty to act reasonable to specific person b/c of relationships
§ Contractual, Parent-Child, Power/Status, etc.
o OR b/c they “Created the Risk”
– Duty is a QUESTION OF LAW for the JUDGE to decide
(A) Duty to Warn
· Majority (OREGON) – NEVER a duty to warn UNLESS
o ∆ created the risk of harm; OR
o Has legally recognized special relationship w/ π.
(B) Duty Owed to Guests
o Who? People who you invite onto your land for your economic benefit (business invitee) OR people who enter land open to the public (store patrons)
o DUTY: (1) inspect & discover possible dangers (latent/patent) and (2) protect invitee from foreseeable dangers.
o Who? People who you invite for reasons other than economic & pecuniary benefit (social guests)
§ Barmore & Lubitz
o DUTY: (1) Warn of known dangers
o Who? People who enter the owner’s land w/o consent.
o DUTY: (1) act reasonably to avoid harm once trespasser & danger are discovered.
– Minority of States have abandoned trichotomy (CA); OREGON still follows it.
– Fuhrer v. Gearhat: No duty to warn about the ocean in Oregon
– Breaux v. City of Miami: duty to warn about ocean in Florida
– Mostert v. CBL: There WAS a duty to warn about the monster for the mall/movie theater off premises. B/c the family were INVITEES & Oregon has a duty to warn of all the foreseeable dangers on and off the premises.
Vistors to Land Cases
– Barmore: attack of the steak knife
o Licensee – no duty to protect
– Lubitz: golf club . . . to the face.
o Licensee – no duty to warn of something w/ no intrinsic danger
o Act v. Omission
(2.) BREACH – failure to exercise reasonable care under the circumstances
– “Breaching” your duty to act reasonable but failing.
o You can fail to exercise reasonable care & still NOT “breach” b/c you owed no duty
– “Unreasonable conduct” – falling short of standard of care
o can be an “ACT” or “OMISSION”
§ doing what a reasonable person would NOT have done
§ failing to do what a reasonable person WOULD have done.
– Question of FACT, for the JURY to decide.
Determining the Standard of Care
– “Statutory tort”
o Est. by legislative enactment
§ medical malpractice locality rule
– “Criminals rules” borrow by tort law
o Adopted by court when est. by leg. from criminal acts.
§ Negligence per se
– “Est. by Judicial decision”
o Previously est. that when conduct occurs, you are negligent.
§ Delair v. McAdoo – driving on bald tires
– “Common law” (*most common*)
o Post event, analyze specific facts & compare to general standard
Reason Person Standard
– Reasonable person under the circumstances.
o Age* / sex / race / health / experience/ etc. NOT CONSIDERED
– Blyth v. Proprietors Of the Birmingham Waterworks
o “Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.”
– “Special knowledge” (under the circumstances) may lead to a higher standard.
– Factors a Reasonable Person considers:
o Foreseeable risks of injury.
o Extent of risk posed by conduct.
o Likelihood of risk causing harm.Ma
o Whether alternatives to conduct would achieve the same result more safely.
o Considers the costs of various actions.
Learned Hand Formula
– “Hand Formula”: B < PL o United States v. Carroll Towing Co. o B: burden o
the unlikely events.
§ Risk of Harm > Cost of Avoidance
– Chicago B&QR Co. v. Krayenbuhl
o Railroad turntable case
o ∆ WAS NEGLIGENT; “public good demands use of lock”
§ Immense risk of injury > Burden of Curing (locking the lock)
§ But-for the lock was locked, injury wouldn’t have happened.
– Vaughan v. Menlove
o ∆ used best efforts, but still not enough
o RULE: “we ought rather adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe”
§ Created => objective standard of reasonableness
– DeLair v. McAdoo
o Car tire blows out; Is a person negligent in failing to know that tires are in poor condition?
o Rigid rule required, for good reason
§ Law requires owners of cars to know the condition of those parts which are likely to become dangerous . . . where flaws would be disclosed by a reasonable inspection.
– Bjorndal v. Weitman
o No emergency instructions; they are “inaccurate and confusing” supplements
o Negligence standard focuses on whether a person acted w/ reasonable care to avoid harm to others, in light of all the circumstances, including an “emergency.”
Child Standard of Care
– More SUBJECTIVE test (under 18)
o Reasonably careful child of like age, intelligence, experience, maturity, training under the circumstances.
– Rationale: kids have to learn to be careful, and should not be exposed to tort liability in light of their development during the learning process.
– Typically held to a Child standard of care UNLESS:
o Engaging in “inherently dangerous activity” (MAJ)
§ Inherently dangerous to anyone
o Engaging in an adult activity (OR)
§ Activity normally undertaken exclusively by adults
· Not shooting guns in OR.