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University of Pennsylvania School of Law
Austin, Regina

Sunday, November 16, 2008
7:44 PM
3 types of torts:
1. Intentional- intent to harm or offend
2. Fault or negligence- failure to use due care or act as reasonable person
3. Strict liability- requires causation and social purpose to compensate or deter

Policy Considerations for Everything:
· Efficiencies regarding deterrence
· Efficiencies regarding compensation
· Morality
· Cultural or social norms or expectations
· Practical politics
· Judicial administration

· Elements of Cause of Action for Negligence
1. DUTY to P to use due care
2. BREACH of that duty
3. CAUSE IN FACT (‘but for’ or ‘substantial factor’)
4. PROXIMATE CAUSE (foresight of kind of harm to the P)
5. DAMAGES (compensable)

· DUTY (Standards of Care)
Duty of due care is the degree of care that a reasonably prudent person would exercise under the same or similar circumstances. A reasonably prudent person responds to foreseeable, unreasonable risks. Must also look at policy.
· Reasonable Person/Flexible Standard
§ What would reasonable person do if faced with similar circumstances? (objective)
· Brown v. Kendall: man beating dogs accidentally hits P, no negligence b/c question is one of due care, not necessity of the action
§ Flexible Standard; BPL test
· B = burden of taking precaution to prevent harm
· P = possibility or probability harm will occur
· L = magnitude of harm
· B < PL (negligence); B > PL (no negligence)
Policies of Flexible Standard:
§ For: Liability can only be imposed on fault, and the burden is left on the party that gets victimized if there is no fault.
§ Against: Some things cannot be measured economically, and the quantitative analysis has high information costs.
§ Strict Foreseeability standard: reasonable person prevents foreseeable risks; this is a bad standard because it doesn’t take into account costs to D
· US v. Carroll Towing: barge breaks loose because bargee isn’t on board and the barge hits a tanker which sinks; D negligent b/c cost was minimal of avoiding
· Strauss v. Belle Realty: electric company not liable for all the injuries resulting from a power outage; this would cause a flood of lawsuits
§ Palsgraf
· Cardozo: duty owed only to foreseeable persons (those in the zone of danger)
· Andrews: duty owed to anyone whose injury is proximately caused by negligent defendant
§ Common Carrier: duty to use highest degree of care that human prudence and foresight can suggest in the maintenance of vehicles and equipment for the safety of passengers (not really used anymore)
· Bethel v. NYC Transport Authority: common carrier rule not viable anymore because a reasonable person standard naturally takes into consideration all the circumstances of a case, like special relationship
§ Can subjective factors be used?
· Below avg intelligence – NO
· Superior skill or expertise – YES, custom used to determine standard
· Physical disability – YES, disability is treated as one of the circumstances
· Mental illness or insanity – NO/except in sudden onset
· Reduces incentives to fake mental illness
· Provides incentives for those responsible to control the mentally ill
· Forces the mentally ill to pay for the harm they do if they want to live in the world with the rest of us
· Avoids the administrative problems re: assessing the extent of disability
· Hammontree v. Jenner: D goes into epileptic seizure and crashes into P’s store; D not liable
· Youth – Hybrid subjective/objective (see Straif)
· Subj.: Could the kid even perceive and avoid the particular risk involved
· Objective: Then how would a reasonable child of like capacity have acted under similar circumstances.
· When performing adult activities, kids can be held to adult standard
· Old Age – MAYBE
· Emergencies – YES (maj. Rule)/NO (min. rule)
· If the rescuer is helping X and injured P, P is within the zone of danger so can recover
· If D puts himself in the position, the rescuer gets hurt, the rescuer can recover
· Rescue must be reasonable, if it is foolhardy, then no recovery.
· Professional rescuers: D is usually not held liable to injuries caused to professional rescuers.
§ If actor is ill or disabled, standard to which he must conform is that of reasonable person under like disability

Role of Social or Community Norms/Expectations
§ What would a reasonable person do when conforming with the community’s standards?
§ If you’re part of a community that uses certain preventative measures and you fail to use them, you might be liable

Role of Custom
§ Relevant in determination of reasonableness, but not conclusive unless D is a professional
§ Polices in favor of using custom:
Juries are biased and incompetent to make technical decisions.
Displacing custom would have far- reaching effects and upset bargained for relationships.
Generally businesses strive for safety.
A defendant may have no reason to know of a danger or of alternatives if everyone in the industry is doing the same thing.
§ Policies against: using custom alone doesn’t challenge industry w/ common law

Role of Statutes (Negligence Per Se)
§ Plaintiff must be within class of persons statute was designed to protect and injury must be in class of injuries statute designed to prevent
§ If statute intended for protection of life/safety, it can be a s

Policies Against Duty to Act:
· There should be freedom to choose on whom one will bestow one’s concern, resources, and skills.
· Forced exchanges interfere with freedom of contract and autonomy
· Self-reliance and self-sufficiency should be encouraged.
· A duty rule would be impractical and unfeasible, especially if there are a large number of potential rescuers.
· The law should not require morality.
· It would insure risky behavior by others.
· A duty would impose an onerous economic burden; setting economic limitations on the duty would be difficult.
· Voluntary rescues are plentiful and cheap; forced rescues would be inefficient.
· Amateur rescuers may make a bad situation worse.
· The line between meddling and saving is murky; ordinary people may have difficulty deciding where the truth lies.

Duties of Owners and Occupiers of Land
P’s status:
· Trespasser (no consent): no duty
· Licensee (consent; includes social guest): eliminate dangers owner knew or had reason to know; no duty to inspect
· Invitee (open to public OR material benefit): inspect, and correct or warn
· Public invitee: one who is invited to enter or remain upon land for a purpose for which the land is open to the public.
· Business invitee: one who is invited to enter or remain upon land for a purpose directly or indirectly connected with the business of the owner/occupier.
D’s activity: natural conditions, artificial conditions, or active operations
Attractive Nuisance (Duty to Child Trespassers): Property owner subject to liability for physical harm if:
Place where condition exits is one upon which possessor knows or has reason to know that children are likely to trespass
Condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve unreasonable risk of death or harm to children
Children because of their youth do not discover condition or realize risk involved with it
Utility to possessor of maintaining condition and burden of eliminating danger
Possessor fails to exercise reasonable care to eliminate danger or otherwise protect children