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University of Oregon School of Law
Forell, Caroline A.


Caroline Forell

Fall 2014

I. Negligence

a. Elements

i. Duty to Act Reasonably

ii. Breach – Unreasonable Conduct

iii. Cause in Fact – But for

iv. Proximate Cause – Foreseeability – Limit on Liability

v. Damages

b. Duty of Care

i. Two Part Analysis – Question of Law

1. Whether the Δ owed a duty of care

2. What is the scope of the duty (i.e. the standard by which the jury will determine whether the Δ breached its duty

ii. Default Standard = Conduct creates a risk of physical harmàduty to act as a reasonable person would under the same or similar circumstances

1. How the Reasonable Person of ordinary prudence would have acted

a. Not what ordinary people in fact do; what he ought to do under circumstances

2. Objective Test

a. Immaterial Δ believed in good faith that he was being careful

b. Why? Subjective Test would lead to perjury, is difficulty to determine, Unjust

3. Standard is constant, level of care required will vary

a. Reasonable person would handle chemicals more carefully than water

b. Reasonable person would act differently in emergency vs non-emergency

i. Emergency instruction

1. Most JDX find unnecessary or redundant

2. OR – Can give but likely won’t b/c possible reversal

iii. Other Standards

1. Children = Reasonably careful child of the same age, experience, and intelligence in same circumstances

a. Engaging in Adult Activates = Normal Reasonably prudent person

i. Motorized Vehicle (Car, Plane, Boat, Snowmobile)

b. Children under 5 = Not capable of negligence

2. Physical Disability = Reasonably prudent person with similar physical Disability

a. Treated conditions = If Δ uses due care to treat disabilityànot necessarily liable

i. Epileptic carefully treating condition appeared under controlànot liable

b. Voluntary intoxication = Liable if voluntarily used alcohol or drugs

3. Mental Deficiency = Normal Reasonably prudent person

4. Insanity

a. Maj = Normal Reasonably prudent person

b. Min = Sudden, Unanticipated insanity

5. Special Knowledge or Skill

a. Medical = Same degree of care, skill, and diligence which is used by a reasonably careful physician in similar circumstances

i. Locality rule

1. Normal Rule – Same Community or

oreseeable π, located in a foreseeable zone of danger

i. Reasonable person would have Foreseen a risk of harm to π or Class of persons to which the π belongs

2. Andrews – Anyone (Broad View)

a. Duty to All = Duty to Anyone

b. Foreseeability to be determined in the context of Proximate cause

3. Application –

a. Palsgraf

i. Foreseeable that X, X’s Package, or someone near X might be harmed, but π not foreseeable b/c far away (not in zone of danger). Π would be foreseeable to X; he was carrying explosivesàowed duty to wider group

ii. Δ owed duty to anyone who might be injured b/c of Δ careless conduct

b. Rescuers

i. π foreseeable under either view b/c danger invites rescue

ii. B/c rescuer is foreseeable, so are any Injuries he causes to another

iii. Limitations

1. Reasonableness = Δ not liable for unreasonable rescue attempts

2. Professional Rescuer = Δ generally not liable if Pro is harmed