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University of Oregon School of Law
Gassama, Ibrahim J.

Gassama, Torts, Fall 2012

Tort Law and Practice, Gassama, Vetri, and Levine, 4th ed

Part 1 – Introduction

The Functions and Goals of Tort Law (p. 226-227)

1) Deterrence

2) Economic Considerations

3) Allocation of Losses

4) Administrative Efficiency

5) Fairness, Ethical, Moral and Justice Considerations

6) Legislative Considerations

7) Availability of Insurance (Gassama’s consideration)

The Culpability Spectrum in Tort Law

Innocent Conduct àNegligence à Recklessness à Intentional Misconduct

1) Intended Harm: Intentional Torts

a. Intentional Misconduct

1. Battery – harmful/offensive contact

2. Assault – reasonable apprehension of harmful/offensive contact

ii. Starting Point: establishing willfulness/intent (See Chpt 8)

iii. Damages: compensatory and punitive damages

2) Unintended Harm

a. Strict Liability

i. Responsibility is based on causation w/out regard to fault

1. Personal moral culpability

2. Violation of social norms

ii. Starting Point: actual knowledge/foresight of risks involved

iii. Used in cases of “abnormally dangerous activities” (rarely)

b. Negligence

i. Unreasonable conduct that creates foreseeable risks of harm

1. Unintended harms arising from accidents

ii. Evaluated: what would a reasonable person have foreseen and done under the circumstances

1. Plaintiff must prove actual harm with legal recourse, casual connection between injury and defendant’s unreasonable conduct

iii. Compensatory damages available, no punitive damages

c. Recklessness

i. Accidents in which defendant exercised a conscious disregard of a high risk of serious harm

1. Involves state of mind – different from intent

2. Something like speeding in the dark, when its icy, no intent to harm but really knew it was dangerous

– Moving towards increased culpability

– Note: frequently lawyers will charge neglect when it should be recklessness because insurance companies won’t pay out otherwise

Negligence Law: Breach of Duty (Chpt 2)

1) Overview of Negligence Law

a. Outline of the Elements of a Negligence Case

i. Duty, Breach of Duty, Cause-in-Fact, Scope of Liability, Damages

ii. In order to have a prim facie negligence case all five elements must be addressed and proven with a preponderance of evidence

1. A defendant need only disprove one to win

b. Overview of the Elements of a Negligence Case

i. Duty

1. The gateway issue of negligence liability

2. Two categories: general duty principle of reasonable care and exception to the general duty principle


ii. Breach of Duty

1. Relates to whether defendant has failed to meet the standard of care

2. The measure of the defendant’s legal obligation to the plaintiff

3. Will mainly be focused on the foreseeable risks

iii. Cause-in-Fact

1. The tie of the defendant’s breach to the plaintiff’s injury

2. Two tests: the “but for” test and the “substantial factor” test

a. Must be based on the sufficiency of evidence

iv. Scope of Liability (Proximate Cause)

1. The limitation of the liability – the proximate cause/legal cause of the accident

a. The “outer boundary of responsibility”

2. Scope suggests that even if elements 1-3 have been satisfied there are factual settings so that imposing liability would be inappropriate

a. Mrs. O’Leary and burning down Chicago

v. Damages

1. The plaintiff’s actual loss and established by the claim

2. The principle is to return the plaintiff to state previous to the accident

c. Defenses to a Negligence Case

i. Prevent the establishment of the prima facie case through counter-arguments

ii. Affirmative defenses:

1. Contributory negligence/comparative fault

a. Most states: comparative fault – know the difference!

2. Assumption of risk

3. Statutes of Limitation

4. Immunity defenses: governmental, charitable, family

d. Proving the Elements to a Negligence Case

i. Two Concerns:

1. Substantive doctrines, conceptual rules and principles of law

2. How a lawyer establishes that these doctrines, rules, principles are satisfied

a. Want to introduce enough evidence so that a juror concludes “more likely than not” that each factually based element is established

ii. Plaintiff has the “burden of proof”

1. Burden of production/coming forward with the evidence

2. Burden of persuading the jury

2) Analysis of the Elements of a Negligence Case

a. Respective Role of Judge and Jury – Determination of Breach of Duty: (see p.75)

i. Judge: Tests the Sufficiency of Evidence

1. No evidence // “Reasonable persons could not different on the balance of probabilities …” // “No reasonable person could find” à Judge decides against Plaintiff

2. Tons of Evidence // “Reasonable persons could not differ on the balance of probabilities…” // “All reasonable persons could find…” à Judge decides for plaintiff

ii. Jury: Tests the Burden of Proof

1. Reasonable persons could differ

2. Burden of proof relevant here

3) The Reasonable Care Standard

a. The measure of duty owed is that of a reasonable person under the same or similar circumstances

b. Breach of Duty – two components

i. Foreseeable risk of harm

ii. Unreasonable conduct in light of those risks

c. Hand Formula

4) The Reasonable Person

a. General Characteristics

i. An Objective Standard – not a subjective one

1. Only an evaluation of defendant’s conduct

2. Not an evaluation of the defendant’s state of mind

ii. Defendant’s conduct is measured against that of a reasonably prudent person acting under the same or similar circumstances

1. An error in judgment is not necessarily negligence

b. Reasonable Men and Women

i. Gender bias and the influence of g

standard – but there may be instances in which safety statute violation was reasonable (emergency)

– 2 Steps to Determining Statutory Relevance:

o Was the plaintiff a member of the class of persons the legislature sought to protect?

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

– Statutory Standard of Care Approaches:

o Strict Negligence per se – no excuse permitted, rare

o Negligence per se – statutory violation creates presumption of breach, defendant may try to prove application of a specific acceptable excuse or reasonable care notwithstanding statutory violation

o Evidence of Negligence – standard of care remains reasonable person, defendant’s violation of relevant statute goes to jury as part of breach determination

i. Relationship of Statutory Standards to the Reasonable Care Standard

1. After determining the relevance of the safety statute to the negligent action à determine the relationship of the statutory standard to the reasonable care standard (how the statute should be used in the case)

2. 2 most common effects: Establishing “negligence per se” and “evidence of negligence”

ii. The Role of Excuses

1. Basic method of determining the extenuating circumstances which excuse the violation of the statute

2. Violation is excused when:

a. The violation is reasonable because of the actor’s incapacity

b. The actor neither knows nor should know of the occasion for compliance

c. The actor is unable, after reasonable diligence or care, to comply

d. The actor is confronted by an emergency not of his own misconduct

e. Compliance involves a greater risk of harm to the actor or others

3. It’s the judge’s duty to determine whether the excuse is one which is reasonable sufficient

4. It’s the jury’s duty to determine whether the conduct is excused under the specific circumstances (when reasonable persons may differ in their judgment on the excuse)

5. Some Potential Excuse Doctrines: Incapacity, no knowledge of occasion for compliance, inability after reasonable diligence to comply, emergency, compliance involves greater risks, reasonableness under all the circumstances

iii. Negligence Per Se vs. Child Standard of Care

1. Conflict between reasonable child standard of care and goals of negligence per se:

a. Child exemption to reasonable care standard

b. Reasonableness of following statute