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University of Pennsylvania School of Law
Feldman, Eric A.


Brown v. Kendall (Dogfight)- D is only liable for unintentional harm if D is at fault. Establishes the principle of fault. (there must be a link between liability and fault)

Adams v. Bullock- (Trolley/Wire) D is not liable if he takes all reasonable precautions.

U.S. V. Carroll Towing- (Barge sinks) If the Burden of preventing the harm is than the probability of harm and the resulting costs D is liable. (BPL)

Reasonable Person Standard- Court should look at how the average person would do (considers age, education, ect.).

Mental illness not a defense, wigging out not a defense (must be a complete loss of conciseness).

Bethel v. N.Y.C. TA (Wheelchair accessible seat bus)- Common carries NOT held to an extraordinary care standard, REASONABLENESS STANDARD SUFFICES.


Balt & Ohio R.R. v. Goodman (Car/train, man killed)- Jury has little discretion when it comes rule of law. Holmes- Prefers standard of conduct over jury discretion.

Pokora v. Wabash R.R. Co. (Car/train, man killed)- Courts should be be careful when framing standards of behavior that amount to rules of law. If reasonable minds can differ case must go to jury. Cardozo- Criticizes Holmes- Juries should be given more leeway.

Andrews v. United Airlines (Bag/overhead bin)- If reasonable minds could differ case goes to jury.

The role of custom and due care
1. Jury must determine reasonableness of actual custom.
2. If conduct adhered to custom- Jury must then determine if they are satisfied with reasonableness of behavior.
3. If conduct departs from custom- jury must determine reasonableness of departure.

Except in Malpractice- Courts have rejected argument that a prevailing custom defines the standard of care.

Trimarco v. Klein (Shower door)- Jury determines reasonableness. Prevailing custom is influential but does NOT determine std of care. The fact that another landlord used better shower door does NOT establish a standard.

TJ Hooper (Tug sinks/ radio)
1. Lack of custom does not trump BPL.
2. Custom is not the only issue and can be trumped.


If D violates statute, usually a prima facie negligence claim which goes to jury.
No protection if violation was different from the intent of the statute

Martin v. Herzog (Buggy light/ accident)- If P is contributory negligent D is not liable.

Tedla v. Ellman (Highway/walking wrong side)- Disobeying statue doesn’t always = contributory negligence. Legislative intent matters.

Intent of statute
1. Falling radiator (Falling ppl)
2. Mental patient steals cars with keys in ignition (Prevent theft)
Proof of Negligence
1. P has burden of proving D’s conduct fell below the standard of care. (consider D’s action or inaction and its reasonableness)
2. Constructive Notic

P had no reasonable expectation to look to D for protection. D. had no duty to warn.

Special Relationship (RT 315)
1. Duty to act only arises when a special relationship exists b/w parties (which can arise from creation of risk).
2. The fact that someone realizes or should realize that an action on her part is necessary for another’s aid/protection does not impose duty if no special relationship.

Farwell v. Keaton (chasing girls)- Companions on a social venture have duty to each other. Voluntary assistance.

RT 324
One under no duty but takes an affirmative action is subject to liability if
1. Failed to exersize reasonable care while in charge, or
2. Discontinued aid and left other in worse position than he found him in

RT 326
Subject to liability if one prevents 3rd party giving aid (Maldonado Court)
RT 327
Liability against one who provide negligent aid.

Vermont has a statue to resuce where there is grave physical harm and no burden or danger is present. Very few states have followed suit.
Every state has a duty to report child abuse.

Good Samaritan Statute

Obligations to 3rd Parties