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University of South Carolina School of Law
Smith, Bryant Walker

Univ. of SC/B.W. Smith/Torts Outline Fall 2014
Torts Outline
Introduction: tort law is a set of rules regarding liability and compensation for personal injury, death, and property damage that one party causes to another.
            Functions and Goals of Tort Law:
a.       Deterrence
b.       Compensation
c.       Avoidance of Undue Burdens on Economic Activities
d.       Effective and Efficient Legal Process
e.       Fairness
Culpability Spectrum
a.       Innocent Conduct
b.      Negligence
c.       Recklessness
d.      Intentional Misconduct
Holding: court’s conclusions and statements of law in the case; limited to the issues before the court. “special combination of law and facts that can be applied to future cases”
Dicta: remarks made by court which are not essential for reaching conclusion.
Vicarious Liability: negligence of one party attributed to another on the basis of a relationship.
1.)   must be employee (not independent contractor)
-10 factors laid out in Kime v. Hobbs
-extent of employer control over work details, whether employee is engaged in distinct occupation, kind of occupation and whether that type of work is done under direction of employer, skill required, whether employer/employee provides instruments, length of time, method of payment, whether work is part of regular business, whether parties believe they are creating agency relationship, whether employer is in business.
2.)   acting within scope of employment at time of negligent act.
Rule from (Pyne v. Witmer)
a.       only kind of work employed to perform
b.      occurs substantially within authorized time/space limits
c.       actuated, at least partly, by purpose to serve master
                        Gadson v. ECO Services
Negligent Entrustment:
            Breach of Duty:
                                    Conduct that falls below standard of care is a breach
Reasonable Care: how a “prudent man under the circumstance” would have acted. (Oliver Wendell Holmes: The Common Law)
                        Alternatives to Reasonable Care
Physical Disability: reasonable person with the physical disability
Mental Disability/Insanity: not usually taken into account. Minority courts have accepted sudden/unforeseen mental incapacity.
Child Standard: same as child unless child is performing inherently dangerous activity normally for adults.
Professional/Special Skill or Training: objective standard of good standing member of that profession.
Medical Malpractice: Foreseeability in negligence only applies to injurious results that are probable and likely to happen. (Smith v. Finch)
a.       Locality Rule: conduct of members of medical profession to be measured solely by the standard of conduct expected of other members of the medical profession in the same locality or community.
b.      Same or Similar Locality Rule: standard of care expected of other members in same or similar locality.
c.       National Standard: standard nationally expected; typically applies to specialists or doctors who hold themselves out as specialist in a particular area of expertise.
Emergency: reasonable conduct given immediate emergency setting.
Hand Formula (B
B, precaution should be taken
                                    If PL < B, precaution does not need to be taken                         Judicial Standards:   Holmes: negligence is question for judge when no reasonable jury could disagree. Man should avoid tra

                        General Duty of Reasonable Care
Legal Question (decided by judge), but facts that give rise to duty may be facts for jury to decide.
Reasonably prudent person under same or similar circumstances.
MacPherson (Cardozo): overturns privity. Buick responsible for finished product. (treats foreseeability as a floor)
A.W. Lancaster County: treats foreseeability as a ceiling. Foreseeability is question of fact. Without foreseeability, no duty exists.
            -foreseeability is part of breach, not duty.
Safety Statutes and Regulations as Standards
d.      Strict Negligence Per Se: no excuse, but very rare
e.       Negligence Per Se: presumption of breach but ∆ may try to prove application of a specific acceptable excuse
                                                                                                   i.      Escuses:
1.      Incapacity
2.      No knowledge of occasion for compliance
3.      Inability after reasonable diligence to comply
4.      Emergency
5.      Compliance involves greater risks
6.      Reasonableness under all circumstances
f.        Rebuttable Presumption: prima facie case of negligence that can be rebutted by ∆ showing reasonable care notwithstanding violation.
g.       Evidence of Negligence: standard of care remains reasonable person but ∆s violation of a relevant statute goes to jury as part of breach determination.