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University of South Carolina School of Law
Hubbard, F. Patrick

I. Introduction to Tort Law
        The primary concern of tort law is whether one whose actions harm another should be required to pay compensation for that harm. However, the goal of tort law is “efficiency” and “fairness,” not compensation (see policy outline for further explanation).
                A. When should someone be liable for an unintended injury?   
·       Courts have developed doctrines between no-liability and strict-liability (no compensation and universal compensation.
·       Hammontree v. Jenner (epileptic driver crashes into bike shop) – when a driver is suddenly struck by a sudden illness, you must prove negligence – strict liability does not apply.
·       Negligence gives people incentives to be careful, but still accounts for the possibility that accidents will happen and no one will be at fault.
·       Whether negligence or strict liability is adopted for a class of cases, it should be done so with the goals of tort law in mind. The chosen doctrine should further the goal of tort law, i.e. reduce the number of accidents.
B. Brief Outline of Negligence
                                1. Act
                                2. Omission
Breach – 2 test, one semi-test
                1. AC v. SC
                2. Reasonable person
                3. Res ipsa loquitor
                Causal Relationship
                                1. Actual Cause
                                2. Proximate Cause
                                1. Compensatory
                                2. Punitive
                                1. Contributory Negligence
                                2. Assumption of risk
                                3. Immunity
C. The Litigation Process
                Complaint – pleadings
–          facts on which plaintiff’s case relies
–          theory plaintiff wants applied to the facts
Defendant moves to dismiss (demurrer)
–          even if the facts plaintiff alleges are true, there is no legal theory upon which plaintiff is entitle to relief
Defendant files answer
–          admits or denies facts
–          allows parties to find more information – depositions, interrogatories
Motion for Summary Judgment
–          based on the uncontroverted facts, one party is entitled to judgment as a matter of law
–          bench trial – judge presides and is the fact finder
–          jury trial – either party can require a jury
Motion for Directed Verdict
–          same a summary judgment, just more facts available b/c after the trial
Jury returns verdict
Request Judgment N.O.V. – judgment notwithstanding the verdict
–          one party thinks that based on the facts no reasonable jury could rule against them
–          there is not evidence to support the verdict
Judge enters judgment
–          appellant must argue that a mistake of law was made, cannot claim factual error.
II. Negligence
                A. Introduction
                                1. Fault Liability development
                                                Brown v. Kendall(Fighting Dogs, D tried to break them up)
                                                   – When a party is engaged in intentional conduct, the burden of proof is on the P to prove D was not using ordinary care.
                                                   – “the plaintiff must come prepared with evidence to show either that the intention was unlawful, or that the defendant was in fault; for if the injury was unavoidable, and the conduct of the defendant was free from blame, then he will not be liable.”
                                2. The Standard of Care
                                                a. Reasonable Person
1. In order to be liable for negligence, the D must have acted with care than a reasonable objective person under the same circumstances.
2. Cases:
Adams v. Bullock (boy swinging wire on bridge) – pp. 38
– Any P entering cause of action must prove that there was a precautionary action the defendant could have taken that would have avoided the accident; and the precautionary action must be reasonable and cost justified in relation to the accident.
– When D does its duty and takes all reasonable precautionary measures, then no negligence can be found.
– Defendant was not liable because there was nothing more he could have done to prevent the accident.
Braun v. Buffalo General Electric (Electrocution by wire installed 50 years ago above a vacant lot) – accident was reasonably foreseeable, thus precautions could have been taken. Liability imposed. – pp 39
Greene v. Sibley (Lady tripped over kneeling mechanic) – Not foreseeable accident, thus mechanic acted reasonably, and thus no liability. – pp 40
                                                                3. Exceptions to Reasonable Person Standard
a. Expert – above average capacity and training held to higher standard. Reasonable person standard established floor; a person may have to do more if ability is higher (i.e. doctor, lawyer)
b. Disability –c. Children (JURISDICTIONAL SPLIT) – pp 56
                – disagreement about exactly what age, about activity/situation
                – if child is engaged in adult activity, then held to adult standard.
– in most states, child below a certain age (usually 7) is not capable of negligence. Between 7-14, presumption is debatable, but still presumed to be incapable of negligence.
                – parents are usually not vicariously liable, unless intentional tort
-Negligent Supervision – Parents can be found individually liable for not controlling their children or by allowing them to do something beyond ability.
d. Emergency Doctrine – in emergency situations, cost may be extremely high. People may not be able to react as they would under normal circumstances. Person is not negligent if he acts under the circumstances as a reasonable person would. “An emergency charge” is not necessary because standard takes into account circumstances.
e. Mental problems – NOT an exception – difficulty in drawing line between mental deficiency and variations of temperament…
                                                b. Accident Costs vs. Safety Costs (AC v. SC)
                                                                United States v. Carroll Towing Co. (Barge sank, bargee not on board) – pp 41
– Variables: B = burden of precaution (SC); P = Probability of injury; L = Loss caused by injury; thus P*L = AC
– if B < PL, then D should pay - if B > PL, then cost should be bourn by the P
– purpose of tort law is to minimize social costs of accidents.
– a reasonable person would not take precautions that costs more than the accidents they prevent
(Cricket ball over the fence) –  Accident was foreseeable, but the risk was very small. It was so small that D had a right not to take precautions.
(Children playing on unlocked RR turntable) – Benefits of the use of turntable outweigh injuries inflicted by it. However, putting a lock on it would not be very costly compared to the accidents of not.
                                3. Proof – burden of proof on P to show that D did not act as a reasonable person would
                                                a. Notice – actual or constructive
                                                                1. Actual Notice – actual being told or knowing
2. Constructive Notice – defendant did not have actual notice, but should have known (knowledge that a reasonable person should have)
– to constitute constructive notice, defect must be visible and apparent and must exist for a sufficient time prior to that accident to permit D’s discovery and remedy
– time of notice affects the Hand formula; the shorter, the higher the B; the longer, the higher the PL
– The more time the hazard is there the more likely a reasonable person would have constructive knowledge
– If it occurs at a congested time, the time of notice decreases b/c the probability of an incident is higher
– Mode of operation or business practice theory –
                – by choosing self-service the owner has agreed to assume responsibility for the conduct of customers who drop things on the floor or act carelessly, P is not require to prove notice if hazardous conditions are foreseeable
                – most jurisdictions reject this theory
                                                                                Negri v. Stop and Shop, Inc. (Slip and fall on baby food)
– D negligent, b/c had constructive notice – evidence showed that it had been there for a while.
                                                                                Gordon v. American Museum of Natural History (Slip and fall on food wrapper on steps)
– No constructive notice present – neither a general awareness that a dangerous condition may be present no the fact that the plaintiff may have seen dangerous conditions in other areas of the property is legally sufficient to charge the defendant with constructive notice.
b. custom – admissible but not conclusive evidence of negligence; relevance of custom – if there is a custom then risk is foreseeable and constructive knowledge of risk and safety measures present, also if custom of safety measures, then AC > SC
                1. Foreseeable – if one company does it, that’s good enough
                2. Feasible – needs to be practical
                3. Knowledge
– Courts have said that noncompliance with custom is evidence of negligence when the custom was designed to prevent the kind of injury that occurred.
                                                                Trimarco v. Klein (Broken Shower glass)
– Evidence of custom and usage is admissible to show what reasonable conduct is under the circumstances
-Custom is a guiding factor for the jury but is not conclusive of due care – failure to follow custom is not necessarily negligence
– Just because there is a custom does not mean it is right
– If the customer is at an informational disadvantage, the entire industry might operate negligently. Where the victims know as much as D, you can trust the industry.
– Look at transaction cost. Sometimes cost is high and the industry lags behind, or market has not forced the industry to be safer.
– Some precautions are so imperative that universal disregard is no excuse for their omission.
T.J. Hooper (no radio on tugs) – custom is relevant. Fact that most tugs do not have radios means nothing if the Judge decides that they should have radios.
Levine v. Russel Baline Co. (cut hand on dumb-waiter rope) – purpose of custom is relevant – if P can show that the custom is designed to prevent accident, then the custom can be used.
                                                c. law – statutes, regulations, etc.
                                                                Martin v. Herzog (No lights on buggy)
                                                                                – statute require lights. Both parties violated statute
                                                                                – contributory negligence
                                                                                – statute designed to guard against this kind of injury
                                                                                – statute is conclusive. Jury cannot disregard.
1. unexcused violation of a statute is negligence per se if it results in the kind of injury that statute was designed to prevent. (safety statute)
2. Restatement § 286 – The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment whose purpose is found to be exclusively or in part:
                i. to protect a class of persons which includes the one whose interest is invaded
                ii. to protect the particular interest which is being invaded
                iii. to protect that interest against the kind of harm which was resulted
                iv. to protect that interest against the particular hazard from which harm resulted.
3. Exceptions/qualifications: (when is a law not conclusive?)
                i. When statute is defective
– ran stop sign that had not been properly published and was thus ineffective. Some imperfections in the enactment process do not get around negligence per se. Even if the violation of the statute would not result in criminal liability that does not necessarily limit civil liability.
– defective statute only excuse in the extreme cases.
                                                                                ii. obscure, outdated, unknown, or arbitrary
Sweet v. Sisters of Providence – rejection of statute is appropriate when the law is obscure, outdated, unknown, or arbitrary
                                                                                iii. good reason to depart from it
                                                                                                Tedla v. Ellman (junk collectors hit by car)
– junk dealers violate statute and walk with traffic instead of against it due to lowered risk because of heavy traffic on the correct side of the street.
– purpose of the statute is to protect pedestrians, compliance only increases probability of accident in this situation – thus no negligence
– if following the statute frustrates the purpose of the statute, then it is not negligence per se to fail to comply. Here there was a good reason to depart from it.
iv. P can’t comply with statute to have lights on car b/c the electrical system of car failed and he was trying to fix it
v. What if it is a custom to violate the statute – not an exception
vi. statutory purpose requirement
– keys left in ignition, stolen by crazy person – no negligence, statute not designed to protect against this
– sheep swept overboard. Purpose of statute was to prevent disease. Negligence per se is only viable if it is the purpose of the statute to prevent his harm.
                                                                                vii. Licensing statutes
                                                                                                – purpose is to protect public from unskilled
                                                                                                – lack of license does not necessarily mean person was unskilled
– ex. Unlicensed driver involved in accident – not necessarily negligence for lack of license, still must prove unlicensed driver was negligent
                                                                                viii. Ordinances – usually same effect as statutes
                                                                                ix. Compliance
                                                                                                – use can comply with a statute but still be negligent.
4. Negligence per se – when negligence is established as a matter of law so that it is not a jury question.
                a. If burden is higher than legislature considered
                b. if abiding with statute would increase the risk of harm
                c. If statute is unrelated to the injury cause.
d. res ipsa loquitor – Jurisdictional split – the thing speaks for itself – permits, but does not compel inference of negligence
                                                                1. the doctrine:
                                                                                – Instrumentality which caused the injury is in exclusive control of defendant
– Type of accident that would not normally occur without negligence on the part of the person who controlled the instrumentality
– P could not have contributed to the cause
                                                                2. The Views:
i. Permissible inference – jury may accept or reject the inference. (Majority) In Inference state D can win even if he does not rebut.
ii. Presumption of negligence – Unless D can rebut, the court must find negligence as a matter of law. In a presumption stat, P will win if D does not rebut. But if D rebuts, P bears the burden.
                                                                3. Defenses:
                                                                                i. offer alternative explanations other than negligence
                                                                                ii. show that such injuries happen frequently without negligence

             -policy of preventing future harm
                                – the burden on the defendant
                                – the consequences to the community
                                – the availability and cost of insurance for the risk
– once a therapist knows or should know that his patient presents a real threat to a third party (a specific person), there is a duty to warn or otherwise take reasonable actions to prevent the danger. This is not a breach or professional ethics because this is an overriding duty to protect the community. Even if the warnings turn out to be unnecessary, the public good demands that they be made.
Lego v. Schmidt – No duty of passenger to warn driver about impending danger to pedestrian. Any action of passenger could turn into negligence.
Pate v. Threlkel – doctor owes duty to patient’s children to warn them of genetic condition. Telling parent may discharge duty. Third party’s existence or identity must be known.
MD employed by company to give prospective employee physical is under no duty to warn if they find signs of trouble.
MD has no duty to passengers in drugged patient’s car or the wife of the infected husband.
Tarasoff does not apply where the risk is self-inflicted.
Thompson v. County of Alameda – No duty if D does not know of specified victim – the burden it too high – duty to warn readily identifiable victim only.
Randi W. v. Muroc Joint Unified School District (D gave letter of recommendation to teacher who molested student)
                – duty not to report information falsely
– cited Garcia v. Superior Court – The absence of the duty to speak does not entitle one to speak falsely.
– writer of letter of recommendation owes duty to 3rd party not to misrepresent facts, if making the misrepresentation would present a substantial, foreseeable, risk of injury to a 3rd person. Once D says anything, he is under obligation to tell everything.
                                                                Vince v. Wilson (P sues aunt who bought car for drunk nephew and car dealer who sold car)
– Restatement – supplier who should have known of the incompetence of the driver can be liable for supplying chattels.
– negligent entrustment can be used against seller of care and person who provides funding.
Car rental cases – No duty to investigate record of DUIs or to inform foreign customers of rules of road.
Reynolds v. Hicks (D social host supplied alcohol to minor)
                – omission to control person or act in giving alcohol or violation of statute?
-liability to 3rd parties injured by drunk minors should not be extended to social host because social host is ill-equipped to handle responsibilities of their guest’s alcohol consumption. Commercial vendors can be held liable.
Gilger v. Hernandez – no duty on social host to protect guests from another guest who has become drunk on the premises.
Dram shop acts – in effect in about a third of the states, imposes liability on tavern owners for serving to intoxicated persons if they cause injury as a result of their intoxication.
– In SC, statute imposes liability on commercial vendors to 3rd party, but not the driver regardless if he’s an adult or minor. Also, no social host liability because if you cut him off he will either stagger away or cause problem at party. Social dynamic that court doesn’t want to get involved in.
-Murder manual – protected by 1st amendment free speech, but court held that publisher could be held liable if book details how to do illegal acts.
– Radio station liable when promoted dangerous conduct – 1st driver to reach DJ won prize.
c.Landowners and Occupiers
                                                                1. Premises Liability
i. Classes of plaintiffs (status of entrants) and duty for owner (JURISDICTIONAL SPLIT – some have them, some have some of them, some don’t have them:
1) Invitee – owner has an interest in the visit and the visitor has reason to believe that the premises have been made safe for him. The invitee’s visit will give material benefit to the landowner . Public or business visitors.
– DUTY: Land ownder has duty to protect invitee from dangers that he knows or should know about through a routine inspection (Actual or constructive knowledge). Open and obvious dangers (JURISDICTIONAL SPLIT) 
– public: person invited to enter and remain as member of public for purpose which land held open (i.e. parks, libraries, stores)
– business: person invited to enter and remain for purposes directly/indirectly connected with business dealings with possessor (i.e. garbagemen, meter-readers, delivery men)
2) Licensee – all persons who enter the premise with permission, but not for economic benefit of the owner (i.e. Social guests)
– emergency officials (JURISDICTIONAL SPLIT) fall here, even though they come on land for owners benefit, because they come in unexpectedly and they have to take the place as they find it. (Sometimes put into invitee category)
– if trespasser is CIULA (constantly intruding upon a limited area) – then they become a licensee through implied consent
– DUTY: not duty of due care; instead, duty to fix or warn of known (actual knowledge) dangers – landowner does not have to use due care to discover risks
– guests should expect premises to be like the possessor himself uses them rather than specifically prepared for guest’s reception.
                                                                                                3) Trespasser –
– DUTY: avoid willful or wanton injury (gross disregard for human well-being – up to jury, no clear definition)
– Exceptions: frequent trespassers, tolerated intruders, trapped trespassers in peril, children – (“attractive nuisance doctrine” – children cannot recognize danger involved – duty of due care imposed)
                                                                                                4) Liability for Off-premise
                                                                                                                – Artificial acts – created by owner – due care imposed
                                                                                                                – natural conditions – no duty
                                                                                                                – rural/ urban add complexities.