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University of Oregon School of Law
Forell, Caroline A.

Fall 2011
Negligence => Tort  AND Neglig. => failure to live up to a standard of care (element)
–          Elements:
(1.) Duty (of reasonable care)
§  General (all-to-all)
§  Specific (duty to warn, protect, rescue)
(2.) Breach
§  Unreasonable conduct
(3.) Causation
§  Cause-in-fact (But-for)
§  Proximate / Foreseeability (Policy/fairness limit on liability)
(4.) Damage
(1.) DUTY
–          ∆ 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.
–          Specific
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
·         Invitee
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.
·         Licensee
o   Who?  People who you invite for reasons other than economic & pecuniary benefit (social guests)
§  Barmore & Lubitz
o   DUTY: (1) Warn of known dangers
·         Trespasser
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.
Duty Cases
–          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.